Opinion
# 2012-032-010 Claim No. 116718
12-18-2012
MATTHEW & STEPHANIE DEAN v. THE STATE OF NEW YORK
Synopsis Case information
UID: 2012-032-010 Claimant(s): MATTHEW & STEPHANIE DEAN Claimant short name: DEAN Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 116718 Motion number(s): Cross-motion number(s): Judge: JUDITH A. HARD Law Offices of James D. DiPasquale Claimant's attorney: By: James D. DiPasquale, Esq. Hon. Eric T. Schneiderman, NYS Attorney General Defendant's attorney: By: Belinda Wagner, Assistant Attorney General, Of Counsel Third-party defendant's attorney: Signature date: December 18, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
SUMMARY
On February 25, 2008, claimantwas working as an apprentice for the Schindler Elevator Company at the Robert Abrams Building for Law and Justice (Justice Building). He was assigned to clean the machine room on the top floor of the west side of the building. The mechanical room was directly below the machine room.A ship's ladder connected the mechanical room to the machine room and is depicted in Exhibits E-O. On February 25, 2008, claimant ascended the ship's ladder to assess the cleanliness of the machine room. On his way back down the ship's ladder to get supplies, he allegedly fell and sustained injuries. The claim appears to allege two theories for liability: the Justice Building was not in compliance with the 1964 Building Code and defendant violated the common law through the negligent design, maintenance, inspection, and repair of the ship's ladder, and allowing it to exist in a defective and dangerous condition (Claim ¶ 9-¶ 19).The Court rejects claimant's arguments and dismisses the claim.
All references to claimant are to Matthew Dean as the claim of Stephanie Dean is derivative in nature.
There was some confusion at trial as to the name of the room under the machine room. It is known as the secondary room or the mechanical room. For purposes of this decision, it will be designated as the mechanical room.
In the post-trial brief, claimant argues that the 1964 Building Code's safety provisions established the common law standard of care by which defendant is bound. The claim also alleges the failure to train and supervise individuals assigned to inspect and to assess the condition of the stairs (Claim ¶ 14 [b]). This appears to have been abandoned at trial and in the post-trial brief.
FACTS
Claimant testified that on February 25, 2008, he was instructed to clean the machine room on the top floor of the Justice Building. In order to do so, he utilized a ship's ladder which connected the mechanical room to the machine room. After using the ship's ladder to ascend to the machine room, he assessed what needed to be done, and began his descent down the ladder. He was wearing steel-toed rubber-soled boots, as required by his employer. He testified that he was not carrying anything in his hands. As he descended the ship's ladder, he was facing out, but turned to the left facing the wall, because the tread did not accommodate his size 13 foot. He stated that his left hand was on the handrail and his right hand was by his side. While descending the ship's ladder from the first step to the second step, the inside of claimant's right heel slipped off the second step. He was still holding the handrail as he slid, legs first down the stairs. His left arm twisted and he had to let go of the handrail. No one witnessed the accident.
Claimant went to the break room where he sat for approximately one hour. He then reported the accident to his supervisor Matthew Robbins and went home for the day. The next day claimant met with Robbins who instructed him to get a drug test if he wanted to file a workers' compensation claim. The results of this test were negative. The accident report, filled out by Robbins, indicates that claimant was carrying cardboard down machine room stairs, misstepped and fell (Exhibit R). Robbins also wrote that claimant should have had his hands on the handrail while going down the stairs (Exhibit R). Claimant testified that he witnessed Robbins filling out the accident report but did not read it. When asked on direct examination whether he told Robbins that he misstepped, claimant testified, "I don't know exactly what I told him. . . I said that I lost my footing, and fell down the stairs" (T:73). He testified that he did not attempt to go down the stairs facing the stairs because three-quarters of his foot would have hung off the tread.
Upon cross-examination, claimant admitted that prior to the accident, he had been in the machine room 15-20 times and had always descended sideways, facing the wall. He drew on Exhibit M where his left hand and left foot were as he initiated his descent down the ship's ladder. Exhibit M-1 indicates where his toes were as he did so. Claimant testified that as he attempted to lower his right foot to the second step on the staircase, his right heel hit the first step, which caused him to lose his footing.
Steven Smith testified as claimant's expert in civil and structural engineering.Smith testified that he assumed the 1964 Building Code (1964 Code) was applicable to the Justice Building, which was built in 1966 (T:181). He examined, measured and photographed the stairs in question. He opined that the ship's ladder was not in conformance with the 1964 Code in that the stairs did not comply with the riser height and tread width (front to back not side to side).He testified that the maximum riser height under the 1964 Code for exit stairways was a maximum of 8 inches and the risers on the ship's ladder were 9 5/8 inches high (T:168-169).He testified that the 1964 Code required that the minimum tread width of the stairs as 9½ inches and the width of these treads were 8 inches (T:169-170). He also found that the level of the treads, across the width of the whole stair, were low on the right side by a little less than five-eighths of an inch, consistent throughout the entire stairs. He did not find any references to a ship's ladder in the 1964 Code. Although he did not measure the space at the top of the staircase or the bottom of the staircase, he opined based upon his observance of the space, that the staircase could have been lengthened and the rise and run of the staircase made to conform to the 1964 Code (T:193-196). Upon cross-examination, Smith admitted that if the 1964 Code did not apply to the Justice Building, then his opinion would be inaccurate. His basis for analyzing the staircase as an exit stair was that no other reference for a stair could be found in the 1964 Building Code.
Steven Smith has a degree in history from Colgate University, a Bachelor's Degree in Civil Engineering from Syracuse University and a Master's Degree in Structural Engineering from Rensselaer Polytechnic Institute. He is a licensed engineer in the State of New York.
Mr. Smith at times called the measurements of the tread width as the tread "length". The 1964 Code refers to the width measurement as front to back of the tread (T:177).
According to Exhibit 5, Table C 212-4.1 of the 1964 Building Code, a table that applies to exit stairs, the maximum riser length is 7 3/4 inches.
Matthew Robbins worked for Schindler Elevator Company in February 2008. He was the supervisor of claimant's supervisor at such time. He prepared Exhibit R, the accident report, regarding claimant's alleged fall. His description of the accident was a summary of claimant's words to him as there were no witnesses to the accident: "Matt was carrying cardboard down machine room stairs. . .injured left leg & left shoulder falling down stairs" (Exhibit R). It was his understanding at the time he prepared the report that, "Matt should have had one hand on handrail while going down stairs" (Exhibit R).
Defendant's first witness, Andrew Papale, a facility manager for the Office of General Services responsible for the maintenance of buildings at the Empire State Plaza, testified that the National Elevator Inspection Services Company inspected elevator numbers 4-6 on the west side of the Justice Building in February of 2007 and found the "access to machine space" had passed "code" requirements.This space would include the ship's ladder connecting the mechanical room to the machine room.
Exhibits W and X completed by National Elevator Inspection Services indicate that it followed a certain code which was not explained at trial.
Defendant next called Lloyd H. Denny, Jr., a registered architect in New York and a certified code enforcement officer. He is employed by the New York State Office of General Services as an associate architect in charge of construction management, whose responsibilities included the inspection of buildings and the performance of facility condition assessments. He performed such assessment of the Justice Building in 2007 and found the mechanical room to be "below the required condition," a term from a rating system provided by the Office of General Services, due to debris on the floor, chipped paint and rust and oil in the Penthouse. He found no defect with the ship's ladder.
Joseph Popp, the engineer-in-charge from the Office of General Services for the modernization project for the elevators in the Justice Building, testified that he attended the initial job meeting and most of the bi-weekly meetings concerning this project. He testified that at no time during the modernization project was the ship's ladder ever mentioned as a safety concern. Popp stated that he wore a size 12 shoe and he did not have any difficulty descending the ship's ladder. When he descended it, he always used the railing. He never heard of any complaints or any accidents from the electrical, construction or asbestos abatement vendors.
Michael Convertino testified as defendant's expert witness.He was unequivocal in his opinion that the 1964 Building Code was not applicable to the Justice Building, which was built in 1966. He supported his opinion with the following facts: the 1964 Code was not adopted by the State, County of Albany or City of Albany in 1964. The City adopted it in 1978, the County in 1984, and New York State in 1990 (Exhibit CC). He explained that the 1990 Code did not require previously existing buildings to comply with the new code. He noted that that architectural plans for the Justice Building were stamped by an architectural firm. In 1965, Albany County owned the land and public improvement to be built thereon (Exhibit P). He believed that the ship's ladder was built in conformance with the general criteria of the Ramsey-Sleeper treatise used by architects prior to the establishment of a comprehensive code. The last page of Exhibit EE, a page from the Ramsey-Sleeper treatise, contains the specifications for a ship's ladder.(9) It indicates that treads may be 3-6 inches, but does not define if that measurement should be the width or the length of the tread.
Michael Convertino has a Master's Degree in Architecture from the State University at Buffalo; Bachelor's Degree of Professional Studies in Architecture from the State University at Buffalo; AAS in Architecture from The College of Technology at Delhi. His professional titles include: licensed architect in New York State; a New York State licensed Asbestos Designer; and New York State Building Code Official. One of his present employments is as an Assistant to the Director of Construction at the New York State Office of General Services. He is also an Adjunct Professor of Interior Design at the Sage Colleges and a principal in a small private architectural firm.
Convertino testified that the as-built plans for the ship's ladder are similar to the Ramsey-Sleeper drawings (Exhibit A/Exhibit EE). Therefore, the ship's ladder met the architectural practices of the time. He strongly disagreed with Smith's conclusion that the 1964 Code applied to the Justice Building and with Smith's assumption that the ship's ladder could be categorized as an exit stairway. According to Convertino, an exit stairway provides access from habitable space. He explained that exit stairways allow for the occupants of a building to safely exit a building and that this ship's ladder, connecting a machine room and a mechanical room, was not an exit stair as contemplated in Exhibit 5, Table C because the rooms are uninhabitable spaces. Convertino went up and down the ship's ladder, facing the stairs with both hands on the handrails, and found it to be a safe means of egress.
LAW AND DISCUSSION
Claimant argues that defendant breached the duty of care owed to him under the 1964 Building Code, because the ship's ladder did not meet the standards as set forth in Table C 212-4.1 of the Code. Claimant further argues that even if the 1964 Building Code does not apply, defendant breached a duty of care owed to him, because the safety standards under the common law duty should be measured by the standards under the 1964 Building Code.
"In determining whether claimant has carried [his or] her burden, the Court, as fact-finder, must weigh the evidence presented after assessing witness credibility and resolving factual disputes" (Melendez v State of New York, UID No. 2012-040-013 [Ct Cl, McCarthy, J., Mar. 5, 2012], quoting Rice v State of New York, UID No. 2006-32-505 [Ct Cl, Hard, J., June 19, 2006]; see Shirvanion v State of New York, 64 AD3d 1113, 1114 [3d Dept 2009]; Bush v State of New York, 57 AD3d 1066, 1066 [3d Dept 2008]). It is claimant's burden to prove his case by a preponderance of the credible evidence (Ellis v Collegetown Plaza, 301 AD2d 758 [3d Dept 2003]).
Convertino's testimony was unequivocal, particularly with regard to the 1964 Building Code not applying to the State of New York, the County of Albany or City of Albany in 1966. The completion of the Justice Building predates the adoption of a Building Code by any of these municipalities. In contrast, Smith's testimony was halting, tentative and at times confusing (see discussion of tread width and length at T:168-170). When specifically asked how he determined that the 1964 Building Code applied, he answered: " I assumed that the -since we- we were aware that the building was completed in 1966 that the Building Code that was enforced in the previous two years was used to design the building." (T:180-181). He further opined that the 1964 Code would apply if the City of Albany had adopted it and would not apply if City had not done so. Counsel did not elicit from this witness, or any other witness, whether the Code was in fact adopted by either the County or City of Albany. Notably, claimant did not provide any evidence that these municipalities adopted the 1964 Building Code.
The Court credits Convertino's testimony that the 1964 Building Code was not applicable to the erection of the Justice Building. Because claimant failed to show that the 1964 Building Code was applicable to the erection of the Justice Building, the Court need not address whether Table C 212-4.1 applies to the facts of this case. Claimant's reliance upon Robotham v State of New York (54 Misc 2d 363 [Ct Cl 1967]) is unavailing. This Court is not bound by a decision of another judge in a coordinate position (Matter of State of New York v Rosado, 25 Misc 3d 380 [Sup Ct, Bronx County June 29, 2009], citing Mountain View Coach Lines v Storms, 102 AD2d 663 [2d Dept 1984]).
Claimant's attempt to back-door the standards of the 1964 Building Code under a common law cause of action must also be dismissed for several reasons. "To establish a prima facie case of negligence in a premises liability claim asserting that injury resulted from a dangerous condition, [c]laimant must demonstrate by a preponderance of the credible evidence that: (1) [d]efendant owed [c]laimant a duty of care; (2) a dangerous condition existed that constituted a breach of that duty; (3) [d]efendant either created the dangerous condition or had actual or constructive notice thereof and failed to alleviate the condition within a reasonable time; and (4) such condition was a substantial factor in the events that caused the injury suffered by [c]laimant" (Tucker v State of New York, UID No. 2012-040-008 [Ct Cl, McCarthy, J., February 3, 2012], citing Solomon v City of New York, 66 NY2d 1026, 1027 [1985]; Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]; Keating v Town of Burke, 86 AD3d 660 [3d Dept 2011]; Baez v Jovin III, LLC, 41 AD3d 751, 752 [2d Dept 2007]; De Luke v City of Albany, 27 AD3d 925, 926 [3d Dept 2006]).
Defendant owed claimant a duty of care. "[W]hen the State acts in a proprietary capacity as a landlord, it is subject to the same principles of tort law as is a private landlord" (Miller v State of New York, 62 NY2d 506, 511 [1984]). The State has "a common law duty to maintain its facilities 'in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk,' with foreseeability constituting the measure of liability" (Melendez v State of New York, UID No. 2012-040-013 [Ct Cl, McCarthy, J., Mar. 5, 2012], quoting Basso v Miller, 40 NY2d 233, 241 [1976], quoting Smith v Arbaugh's Rest., 469 F2d 97, 100 [DC Cir 1972] cert denied 412 US 939 [1973]; see Galindo v Town of Clarkstown, 2 NY3d 633, 636 [2004]).
Claimant failed, however, to show that the ship's ladder was a dangerous condition, and that defendant knew it was a dangerous condition and failed to correct it within a reasonable time. "The existence of a dangerous condition is generally a question of fact that may hinge upon the facts and circumstances peculiar to each case" (Melendez v State of New York, UID No. 2012-040-013 [Ct Cl, McCarthy, J., Mar. 5, 2012], citing Moons v Wade Lupe Constr. Co., Inc., 24 AD3d 1005, 1006 [3d Dept 2005]). Moreover, ''[t]o constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit a defendant's employees to discover and remedy it" (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]; Torosian v Bigsbee Vil. Homeowners Assn., 46 AD3d 1314, 1315 [3d Dept 2007]). In the present case, claimant did not produce any evidence of prior accidents involving the ship's ladder. The Court credits the clear and sincere testimonies of Denny and Popp that the ship's ladder was neither defective nor unsafe. The Court notes that the plans for the ship's ladder were stamped by an architectural firm.
Finally, a claimant has the duty to use reasonable care to observe his or her surroundings, to see what is there to be seen, and to avoid accidents (see Weigand v United Traction Co., 221 NY 39 [1917]; Marmaduke v Spraker, 34 AD3d 1007 [3d Dept 2006]; Terrell v Kissel, 116 AD2d 637 [2d Dept 1986]). The Court finds that claimant slid off the tread of the ship's ladder simply because he misstepped and descended improperly by not facing the stairs as he did so. Claimant failed to persuade this Court that the riser, tread or purported unevenness were substantial factors that caused his injury. Further, the Court credits Robbins' testimony in that he wrote in the accident report, at a time closer to the accident, that claimant was holding cardboard as he descended the ladder. All of these factors are the likely cause of the accident, as opposed to a defective and dangerous condition as alleged by claimant.
Upon review of all the evidence, including the observation of the witnesses and an assessment of their demeanors, the Court finds that claimant failed to establish his case by a preponderance of the credible evidence. All motions upon which the Court reserved decision are denied. The claim is in all respects dismissed.
Let judgment be entered accordingly.
December 18, 2012
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims